The opinion
2018 IL 122203
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 122203)
CONSTANCE OSWALD, Appellant, v. BRIAN HAMER,
Director of Revenue, et al., Appellees.
Opinion filed September 20, 2018.
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Thomas, Kilbride, Garman, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 Section 15-86 of the Property Tax Code (35 ILCS 200/15-86 (West 2012))
provides for a charitable property tax exemption specifically to eligible
not-for-profit hospitals and their hospital affiliates (hereinafter hospitals). Plaintiff,
Constance Oswald, filed an action in the circuit court of Cook County seeking a
judgment declaring that section 15-86 of the Property Tax Code, on its face,
violates section 6 of article IX of the Illinois Constitution (Ill. Const. 1970, art IX,
§ 6). The circuit court granted summary judgment in favor of defendants Brian
Hamer, Director of Revenue, 1 the Department of Revenue, and the Illinois Hospital
Association. The appellate court affirmed. 2016 IL App (1st) 152691.
¶2 This court allowed plaintiff’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff.
Mar. 15, 2016)). For the following reasons, we affirm the judgment of the appellate
court.
¶3 I. BACKGROUND
¶4 Section 15-86(c) of the Property Tax Code provides that a hospital applicant
“shall be issued” a charitable property tax exemption if the value of certain
qualifying services or activities provided by the hospital in a given year equals or
exceeds the hospital’s estimated property tax liability for the same year. 35 ILCS
200/15-86(c) (West 2012). In her single-count complaint, plaintiff alleged that
section 15-86(c) commands that the hospital applicant receive the charitable
property tax exemption if the statutory criteria are satisfied. Plaintiff contended that
section 15-86 was facially unconstitutional because the statute mandates the
issuance of the charitable property tax exemption without consideration of the
constitutional requirement that the subject property be “used exclusively for ***
charitable purposes” (Ill. Const. 1970, art. IX, § 6). Plaintiff sought, inter alia, a
judgment declaring that section 15-86 was “unconstitutional on its face” and an
order enjoining defendants from granting any section 15-86 exemptions and
requiring defendants to collect property tax from those hospitals that already had
been granted such exemptions.
¶5 The complaint named as defendants the Department of Revenue and its
director. The circuit court granted the Illinois Hospital Association’s petition for
leave to intervene as a defendant. Plaintiff and defendants filed cross-motions for
summary judgment contesting solely the facial constitutionality of section 15-86.
The circuit court denied plaintiff’s motion for summary judgment and granted
1
Brian Hamer is no longer the director of the Illinois Department of Revenue. Thus, the
current director, Constance Beard, has been substituted as a party by operation of law. See
735 ILCS 5/2-1008(d) (West 2012).
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summary judgment in favor of defendants. The court found that section 15-86 does
not dispense with the Illinois Constitution’s requirements for charitable property
tax exemption but, rather, the Department of Revenue must still evaluate a hospital
applicant’s claim for a section 15-86 exemption under constitutional requirements
and precedent. Also, the court found that plaintiff failed to show that section 15-86
was inherently flawed in all circumstances. Accordingly, the circuit court
concluded that the statute was not facially unconstitutional.
¶6 The appellate court affirmed. 2016 IL App (1st) 152691. The court rejected
plaintiff’s argument that the legislature intended the word “shall” in section
15-86(c) to be mandatory. Id. ¶ 22. Rather, the court held that the word “shall” is
merely directory. Id. ¶ 26. The court observed that its construction of section
15-86(c) followed case law that construed charitable property tax exemption
statutes alongside the exclusive use requirements of section 6 of article IX of the
Illinois Constitution. Id. ¶¶ 27-36. Alternatively, the appellate court upheld the
circuit court’s conclusion that section 15-86 was facially constitutional because
plaintiff failed to sustain her burden of demonstrating that there was no set of
circumstances under which the statute would be valid. Id. ¶ 47.
¶7 Plaintiff appeals to this court. The Champaign County Treasurer et al.,
Cunningham Township et al., and the Illinois Association of School Boards et al.
were each granted leave to submit an amicus curiae brief in support of plaintiff. Ill.
S. Ct. R. 345 (eff. Sept. 20, 2010).
¶8 II. ANALYSIS
¶9 The ultimate question presented for our review is whether section 15-86 of the
Property Tax Code, on its face, violates section 6 of article IX of the Illinois
Constitution. This matter comes before us in the context of cross-motions for
summary judgment. Summary judgment is appropriate “if the pleadings,
depositions, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2012). When
parties file cross-motions for summary judgment, they mutually agree that there are
no genuine issues of material fact and that the case may be resolved as a matter of
law. Jones v. Municipal Employees’ Annuity & Benefit Fund, 2016 IL 119618,
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¶ 26; Irwin Industrial Tool Co. v. Department of Revenue, 238 Ill. 2d 332, 339-40
(2010); Founders Insurance Co. v. Munoz, 237 Ill. 2d 424, 432 (2010). The issues
in this case involve statutory construction. Statutory construction presents
questions of law that are appropriate for summary judgment. Hooker v. Retirement
Board of the Firemen’s Annuity & Benefit Fund, 2013 IL 114811, ¶ 15. Issues
involving statutory construction and summary judgment rulings are reviewed
de novo. Id. Also, the constitutionality of a statute is a question of law reviewed
de novo. Irwin Industrial Tool, 238 Ill. 2d at 340; In re Parentage of John M., 212
Ill. 2d 253, 265 (2004).
¶ 10 In construing section 15-86, we are guided by familiar principles. When
presented with an issue of statutory construction, a court’s primary objective is to
ascertain and give effect to the intent of the legislature. Murphy-Hylton v.
Lieberman Management Services, Inc., 2016 IL 120394, ¶ 25. All other rules of
statutory construction are subordinate to this cardinal principle. Chicago Teachers
Union, Local No. 1 v. Board of Education of the City of Chicago, 2012 IL 112566,
¶ 15. The most reliable indicator of legislative intent is the language of the statute,
which must be given its plain and ordinary meaning. The statute is viewed as a
whole, construing words and phrases in context to other relevant statutory
provisions and not in isolation. Murphy-Hylton, 2016 IL 120394, ¶ 25; J&J
Ventures Gaming, LLC v. Wild, Inc., 2016 IL 119870, ¶ 25. Each word, clause, and
sentence of a statute must be given a reasonable meaning, if possible, and should
not be rendered superfluous. Murphy-Hylton, 2016 IL 120394, ¶ 25; Williams v.
Staples, 208 Ill. 2d 480, 487 (2004). Additionally, the court may consider the
reason for the law, the problems sought to be remedied, the purposes to be
achieved, and the consequences of construing the statute one way or another.
Murphy-Hylton, 2016 IL 120394, ¶ 25; J&J Ventures Gaming, 2016 IL 119870,
¶ 25. To understand the purpose and effect of section 15-86, we consider its
constitutional and statutory foundations.
¶ 11 A. Article IX of the Illinois Constitution
¶ 12 The constitutional backdrop of charitable property tax exemption legislation in
Illinois is well established. Generally, the Illinois Constitution does not grant power
to the legislature but rather restricts the legislature’s power to act. The State’s
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inherent power to tax is vested in the General Assembly. The legislature’s power to
tax is plenary and is restricted only by the federal and state constitutions. Article IX
of the 1970 Illinois Constitution (Ill. Const. 1970, art. IX) generally subjects all real
property to taxation. Eden Retirement Center, Inc. v. Department of Revenue, 213
Ill. 2d 273, 285 (2004) (and cases cited therein). “Under Illinois law, taxation is the
rule. Tax exemption is the exception.” Provena Covenant Medical Center v.
Department of Revenue, 236 Ill. 2d 368, 388 (2010).
¶ 13 However, section 6 of article IX limits the power of the legislature in the area of
property tax exemption in pertinent part as follows:
“The General Assembly by law may exempt from taxation only the
property of the State, units of local government and school districts and
property used exclusively for agricultural and horticultural societies, and for
school, religious, cemetery and charitable purposes.” Ill. Const. 1970, art. IX,
§ 6.
Section 6 of article IX is not self-executing but authorizes the General Assembly to
enact legislation providing for an exemption. It is permissible, not mandatory, for
the legislature to exercise that authority. Provena, 236 Ill. 2d at 389; North Shore
Post No. 21 of the American Legion v. Korzen, 38 Ill. 2d 231, 233 (1967). 2
¶ 14 Section 6 of article IX divides property that the legislature may exempt from
taxation into two categories: (1) property owned by “the State, units of local
government and school districts” and (2) property used exclusively for the
purposes defined in the second clause of the section. Ill. Const. 1970, art. IX, § 6.
By designating the categories of property that the legislature may exempt from
taxation, section 6 of article IX limits the legislature’s authority to exempt. Eden,
213 Ill. 2d at 286; MacMurray College v. Wright, 38 Ill. 2d 272, 276 (1967). Where
the legislature does choose to provide for an exemption, it must remain within
constitutional limitations. “No other subjects of property tax exemption are
2
Because section 6 of article IX of the 1970 Illinois Constitution merely rephrases its
predecessor provision in the 1870 Illinois Constitution, “ ‘cases interpreting the permissive
legislative exemptions under the Constitution of 1870 are equally relevant to the limits of
exemption now constitutionally permitted.’ ” Eden, 213 Ill. 2d at 286 (quoting Small v.
Pangle, 60 Ill. 2d 510, 514 (1975)).
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permitted. The legislature cannot add to or broaden the exemptions specified in
section 6.” Provena, 236 Ill. 2d at 389; accord Eden, 213 Ill. 2d at 286; Chicago
Bar Ass’n v. Department of Revenue, 163 Ill. 2d 290, 297 (1994).
¶ 15 One category of property that the legislature may exempt from taxation is
property used for charitable purposes. “Charitable use is a constitutional
requirement. An applicant for a charitable-use property tax exemption must
‘comply unequivocally with the constitutional requirement of exclusive charitable
use.’ [Citation.]” (Emphasis in original.) Eden, 213 Ill. 2d at 287. In Methodist Old
Peoples Home, this court defined “charity” as “ ‘a gift to be applied *** for the
benefit of an indefinite number of persons, persuading them to an educational or
religious conviction, for their general welfare—or in some way reducing the
burdens of government.’ ” Provena, 236 Ill. 2d at 390-91 (quoting Methodist Old
Peoples Home v. Korzen, 39 Ill. 2d 149, 156-57 (1968)).
¶ 16 Additionally, the term “exclusively used” “means the primary purpose for
which property is used and not any secondary or incidental purpose.” Methodist
Old Peoples Home, 39 Ill. 2d at 157.
¶ 17 This court has repeatedly acknowledged the difficulty of framing a universally
applicable definition of an exclusive charitable use. People ex rel. Nordlund v.
Association of the Winnebago Home for the Aged, 40 Ill. 2d 91, 100 (1968);
Methodist Old Peoples Home, 39 Ill. 2d at 156. However, the above-stated
“principles constitute the frame of reference to which we must apply plaintiff’s use
of its property to arrive at a determination of whether or not such use is in fact
exclusively for charitable purposes.” Methodist Old Peoples Home, 39 Ill. 2d at
157.
¶ 18 “While the General Assembly has no authority to grant exemptions beyond
those authorized by section 6, it ‘may place restrictions, limitations, and conditions
on [property tax] exemptions as may be proper by general law.’ ” Provena, 236 Ill.
2d at 390 (quoting North Shore Post No. 21, 38 Ill. 2d at 233). The party claiming
an exemption carries the burden of proving clearly that the use of the subject
property is within both the constitutional authorization and the terms of the statute
under which the claim of exemption is made. Eden, 213 Ill. 2d at 288-89 (and cases
cited therein); Rogers Park Post No. 108 v. Brenza, 8 Ill. 2d 286, 290 (1956).
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¶ 19 B. Section 15-65 Charitable Use Exemption
¶ 20 In conformity with section 6 of article IX, the General Assembly chose to create
a charitable-use property tax exemption but with the additional restriction that the
property be owned by a statutorily designated organization. Section 15-65 of the
Property Tax Code requires not only that the property be “actually and exclusively
used for charitable or beneficent purposes, and not leased or otherwise used with a
view to profit,” but also that the property be owned by “[i]nstitutions of public
charity,” “[b]eneficent and charitable organizations,” “[o]ld people’s homes,”
not-for-profit health maintenance organizations, free public libraries, or historical
societies. 35 ILCS 200/15-65 (2012); see Provena, 236 Ill. 2d at 390. Accordingly,
section 15-65 requires two things to qualify for a charitable use property tax
exemption: charitable use and ownership by a charitable organization. Chicago
Patrolmen’s Ass’n v. Department of Revenue, 171 Ill. 2d 263, 270 (1996); Rogers
Park Post No. 108, 8 Ill. 2d at 291.
¶ 21 Prior to the enactment of section 15-86 of the Property Tax Code, private
hospitals could apply for property tax exemption as charitable organizations. See,
e.g., People ex rel. County Collector v. Hopedale Medical Foundation, 46 Ill. 2d
450, 453-54 (1970); People ex rel. Cannon v. Southern Illinois Hospital Corp., 404
Ill. 66, 69-70 (1949) (both collecting cases).
¶ 22 In Provena, this court, with two justices recusing, unanimously concluded that
Provena failed to satisfy the requirements for the charitable use property tax
exemption. The plurality opinion reached this conclusion by recounting that the
underlying purpose of charitable property tax exemption is the benefit that private
charity confers upon the public and, consequently, to some extent, a relief of the
State’s burden to care for and advance the interests of its residents. Provena, 236
Ill. 2d at 394-95 (and cases cited therein). The plurality reasoned:
“Conditioning charitable status on whether an activity helps relieve the
burdens on government is appropriate. After all, each tax dollar lost to a
charitable exemption is one less dollar affected governmental bodies will have
to meet their obligations directly. If a charitable institution wishes to avail itself
of funds which would otherwise flow into a public treasury, it is only fitting that
the institution provide some compensatory benefit in exchange. While Illinois
law has never required that there be a direct, dollar-for-dollar correlation
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between the value of the tax exemption and the value of the goods or services
provided by the charity, it is a sine qua non of charitable status that those
seeking a charitable exemption be able to demonstrate that their activities will
help alleviate some financial burden incurred by the affected taxing bodies in
performing their governmental functions.” Id. at 395.
After reviewing the record, the plurality determined that “both the number of
uninsured patients receiving free or discounted care and the dollar value of the care
they received” were de minimis. Id. at 397.
¶ 23 However, two members of this court concurred in part and dissented in part. Id.
at 411 (Burke, J., concurring in part and dissenting in part, joined by Freeman, J.).
The partial dissent concluded that Provena did not qualify for the charitable
exemption based on the actual ownership of the property. Id. at 411-12. The partial
dissent disagreed with the plurality’s determination that Provena’s charity care was
de minimis: “I disagree with this rationale. By imposing a quantum of care
requirement and monetary threshold, the plurality is injecting itself into matters
best left to the legislature.” Id. at 412. “I do not believe that this court can, under the
plain language of section 15-65, impose a quantum of care or monetary
requirement, nor should it invent legislative intent in this regard.” Id. at 415.
Having discussed the constitutional and statutory backdrop, we now turn to section
15-86 of the Property Tax Code.
¶ 24 C. Section 15-86 Hospital Charitable Use Exemption
¶ 25 In response to this court’s decision in Provena, the General Assembly enacted
Public Act 97-688 (eff. June 14, 2012), which, inter alia, added section 15-86 to the
Property Tax Code (35 ILCS 200/15-86 (West 2012)). The legislature expressly
discussed Provena and the legislative intent underlying the statute. The legislature
observed that, subsequent to Provena, “there is considerable uncertainty
surrounding the test for charitable property tax exemption, especially regarding the
application of a quantitative or monetary threshold.” Id. § 15-86(a)(1). The
legislature further observed: “It is essential to ensure that tax exemption law
relating to hospitals accounts for the complexities of the modern health care
delivery system.” Id. § 15-86(a)(3). The legislature expressly codified its intent as
follows:
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“(5) Working with the Illinois hospital community and other interested
parties, the General Assembly has developed a comprehensive combination of
related legislation that addresses hospital property tax exemption, significantly
increases access to free health care for indigent persons, and strengthens the
Medical Assistance program. It is the intent of the General Assembly to
establish a new category of ownership for charitable property tax exemption to
be applied to not-for-profit hospitals and hospital affiliates in lieu of the
existing ownership category of ‘institutions of public charity.’ It is also the
intent of the General Assembly to establish quantifiable standards for the
issuance of charitable exemptions for such property. It is not the intent of the
General Assembly to declare any property exempt ipso facto, but rather to
establish criteria to be applied to the facts on a case-by-case basis.” Id.
§ 15-86(a)(5).
¶ 26 Section 15-86(c) provides for the hospital charitable property tax exemption in
pertinent part as follows:
“(c) A hospital applicant satisfies the conditions for an exemption under this
Section with respect to the subject property, and shall be issued a charitable
exemption for that property, if the value of services or activities listed in
subsection (e) for the hospital year equals or exceeds the relevant hospital
entity’s estimated property tax liability, as determined under subsection (g), for
the year for which exemption is sought.” (Emphasis added.) Id. § 15-86(c).
Subsection (c) also provides guidelines in specific situations, including where “the
relevant hospital entity is a hospital owner that owns more than one hospital” and
where the hospital applicant is “a multi-state hospital system or hospital affiliate.”
Id.
¶ 27 Subsection (e) lists the “services and activities” that are considered in making
the calculations required by subsection (c). These include “[c]harity care,” defined
as “[f]ree or discounted services *** measured at cost”; health services to
low-income and underinsured individuals; subsidy of state or local governments;
support for State health care programs for low-income individuals; subsidy for
treating dual-eligibility Medicare/Medicaid patients; relief of the burden of
government-related health care of low-income individuals; and “[a]ny other
activity by the relevant hospital entity that the Department determines relieves the
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burden of government or addresses the health of low-income or underserved
individuals.” Id. §§ 15-86(e)(1)-(7). 3
¶ 28 Before this court, plaintiff contends that section 15-86 is facially
unconstitutional because it mandatorily awards a property tax exemption based on
satisfaction of its statutory criteria, without regard to whether the subject property
satisfies the constitutional “exclusive charitable use” requirement. We disagree.
¶ 29 Statutes carry a strong presumption of constitutionality. Walker v. McGuire,
2015 IL 117138, ¶ 12; Elementary School District 159 v. Schiller, 221 Ill. 2d 130,
148 (2006). The party challenging the validity of a statute has the burden of clearly
establishing the alleged constitutional infirmity. Napleton v. Village of Hinsdale,
229 Ill. 2d 296, 306 (2008); Parentage of John M., 212 Ill. 2d at 266. It is a court’s
duty to construe a statute so as to uphold its constitutionality if reasonably possible.
Further, if a statute’s construction is doubtful, a court will resolve the doubt in favor
of the statute’s validity. Napleton, 229 Ill. 2d at 306-07; Eden, 213 Ill. 2d at 291-92
(collecting cases).
¶ 30 Plaintiff observes that section 15-86 does not provide, as a condition for the
charitable property tax exemption, that the subject property must be used
exclusively for charitable purposes. Further, according to plaintiff, section 15-86
lacks even “any general reference” to the constitutional requirement of exclusive
charitable use.
¶ 31 Admittedly, neither subsection (a) nor (c) of section 15-86 contains an explicit
reference to the constitutional requirement of exclusive charitable use, as is
provided in section 15-65. While such plain language crystallized the intent of the
legislature in enacting section 15-65 (see Eden, 213 Ill. 2d at 291-92 (construing
section 15-65)), the legislative intent of section 15-86 is nevertheless readily
ascertainable.
¶ 32 We presume that the legislature enacts statutes in light of the constitution and
intends to enact constitutional legislation (Gill v. Miller, 94 Ill. 2d 52, 56 (1983))
3
Also, section 15-86 expressly provides that an otherwise eligible hospital applicant is
not precluded from obtaining or maintaining a property tax exemption pursuant to other
provisions of the Property Tax Code. 35 ILCS 200/15-86(i) (West 2012).
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and does not intend to exceed its constitutional limitations (Methodist Old Peoples
Home, 39 Ill. 2d at 156; MacMurray College, 38 Ill. 2d at 277). Accordingly, where
a statute does not expressly refer to an applicable constitutional limitation, “it will
be presumed that the legislature intended to observe the constitution.” North
Wichert Drainage District v. Chamberlain, 340 Ill. 644, 648-49 (1930); accord
State ex rel. Burton v. Greater Portsmouth Growth Corp., 218 N.E.2d 446, 451
(Ohio 1966) (“the constitutional limitation is by implication a part of the statute,
and the mere failure to set it forth in the statute does not invalidate the provision”
“on the basis that it exceeds or is contrary to the constitutional provision”); 16A
Am. Jur. 2d Constitutional Law § 169 (1998) (same).
¶ 33 In the case at bar, while section 15-86(c) does not expressly provide that the
hospital charitable property tax exemption is limited to applicants that satisfy the
constitutional requirement of exclusive charitable use, section 6 of article IX of the
Illinois Constitution does say so, and we presume that the legislature intended to
comply with this constitutional limitation. See North Wichert Drainage District,
340 Ill. at 648-49.
¶ 34 Beyond this presumption, the legislature stated in section 15-86(a)(5): “It is the
intent of the General Assembly to establish a new category of ownership for
charitable property tax exemption to be applied to not-for-profit hospitals and
hospital affiliates in lieu of the existing ownership category of ‘institutions of
public charity’.” 35 ILCS 200/15-86(a)(5) (West 2012). This is an explicit
reference to section 15-65, which in turn contains the explicit reference to the
constitutional limitation of exclusive charitable use. Id. § 15-65. Construing these
provisions together as a whole (Murphy-Hylton, 2016 IL 120394, ¶ 25), we
conclude that the legislature intended to comply with this constitutional limitation.
¶ 35 Nevertheless, plaintiff contends that section 15-86(c), which provides that if the
hospital applicant satisfies the statutory requirements for a hospital charitable
property tax exemption, the hospital “shall be issued a charitable exemption for that
property” (emphasis added) (35 ILCS 200/15-86(c) (West 2012)), mandates the
issuance of the exemption without consideration of the constitutional requirement
of exclusive charitable use. Indeed, according to plaintiff, there is “nothing in the
language” of section 15-86 suggesting that, if the requirements of subsection (c) are
met, a hospital may nevertheless be refused the hospital charitable property tax
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exemption. On the other hand, defendants contend that section 15-86(c) is not
mandatory but, rather, permissive or directory.
¶ 36 Plaintiff and defendants invoke the rules of statutory construction pertaining to
the separate questions of whether a statutory provision is mandatory or permissive
and whether the provision is mandatory or directory. See People v. Delvillar, 235
Ill. 2d 507, 514-15 (2009); People v. Ousley, 235 Ill. 2d 299, 310-11 (2009); People
v. Robinson, 217 Ill. 2d 43, 51-52 (2005). Employing these rules of construction,
plaintiff contends that the issue here is whether section 15-86(c) is mandatory or
permissive. She argues that the provision is mandatory and, consequently, section
15-86 is unconstitutional.
¶ 37 “Legislative intent, however, remains the primary inquiry and controls the
court’s construction of a statute. [Citations.] Traditional rules of statutory
construction are merely aids in determining legislative intent, and those rules must
yield to such intent.” Collins v. Board of Trustees of the Firemen’s Annuity &
Benefit Fund, 155 Ill. 2d 103, 111 (1993); see People ex rel. Cason v. Ring, 41 Ill.
2d 305, 309-10 (1968) (same). We are presented with a situation where the
legislature omitted a specific reference to the constitution’s exclusive charitable use
requirement. In similar circumstances, “courts have allowed the substitution of
language in order to carry out the demonstrable legislative intention, observing,
however, when doing so, that this technique of construction is to be exercised with
caution.” Gill, 94 Ill. 2d at 58; see People ex rel. Barrett v. Anderson, 398 Ill. 480,
485 (1947) (same). “[W]here applying language literally in a clause of an otherwise
coherent statute would frustrate the spirit of the statute and the intent of the
legislature, language may be disregarded, modified or supplied to give effect to the
legislative design.” Gill, 94 Ill. 2d at 59; see Klein v. Department of Registration &
Education, 412 Ill. 75, 86 (1952) (same).
¶ 38 In the case at bar, the legislature was certainly aware of section 6 of article IX of
the constitution and its requirement of exclusive charitable use, and it intended to
enact a constitutional hospital charitable property tax exemption. To construe
subsection (c) as plaintiff argues would cast doubt on the constitutionality of
section 15-86, which, as we have concluded, is a result the legislature could not
have intended. “Accordingly, an interpretation under which the statute would be
considered constitutional is preferable to one that would leave its constitutionality
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in doubt.” Braun v. Retirement Board of the Firemen’s Annuity & Benefit Fund,
108 Ill. 2d 119, 127 (1985) (collecting cases). We therefore construe the word
“shall” in section 15-86(c) to be permissive and not mandatory. This reading of
section 15-86(c) would avoid the possible constitutional infirmity, and that is the
construction we adopt.
¶ 39 Therefore, a hospital applicant seeking a section 15-86 charitable property tax
exemption must document the services or activities meeting the statutory criteria.
Additionally, the hospital must show that the subject property meets the
constitutional test of exclusive charitable use.
¶ 40 Significantly, plaintiff’s action is framed solely as a facial challenge to the
constitutional validity of section 15-86 of the Property Tax Code. As such, we have
before us only the statute itself. Reno v. Flores, 507 U.S. 292, 300-01 (1993). A
facial challenge to the constitutionality of a statute is the most difficult challenge to
make successfully. A statute is facially invalid only if no set of circumstances exists
under which the statute would be valid. Napleton, 229 Ill. 2d at 305-06; Parentage
of John M., 212 Ill. 2d at 269; see United States v. Salerno, 481 U.S. 739, 745
(1987). The fact that the statute could be found unconstitutional under some set of
circumstances does not establish its facial unconstitutionality. Napleton, 229 Ill. 2d
at 306; Parentage of John M., 212 Ill. 2d at 269; In re M.T., 221 Ill. 2d 517, 536-37
(2006). Thus, if any situation exists where a statute could be validly applied, a
facial challenge must fail. People v. Rizzo, 2016 IL 118599, ¶ 24; M.T., 221 Ill. 2d
at 537 (and cases cited therein).
¶ 41 Several of plaintiff’s supporting amici invite this court to discard the “no set of
circumstances” test in determining the facial constitutionality of legislation.
However, plaintiff herself does not raise this issue. An amicus takes the case as it
finds it, with the issues framed by the parties. Accordingly, this court has
repeatedly rejected attempts by amici to assert issues not raised by the parties.
Bruns v. City of Centralia, 2014 IL 116998, ¶ 15 n.1 (citing Karas v. Strevell, 227
Ill. 2d 440, 450-51 (2008)). Consequently, we decline this invitation.
¶ 42 In the case at bar, plaintiff concedes before this court, as she did before the
appellate court (2016 IL App (1st) 152691, ¶ 47), that it is hypothetically possible
for a hospital applicant to satisfy the requirements of section 15-86(c), i.e., that the
hospital services and activities listed in subsection (e) equal or exceed the
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hospital’s estimated property tax liability, and for the hospital to use its property
exclusively for charitable purposes as required under section 6 of article IX of the
Illinois Constitution. We cannot say that a hospital applicant, per se, may never
satisfy both the statutory requirements of section 15-86 and the constitutional
requirement of exclusive use for charitable purposes. See, e.g., Chicago Bar Ass’n,
163 Ill. 2d at 300.
¶ 43 While it is possible that specific future applications of section 15-86 may
produce actual constitutional problems, it will be time enough to consider any such
problems when they arise. See Napleton, 229 Ill. 2d at 306; Parentage of John M.,
212 Ill. 2d at 269 (both citing Village of Hoffman Estates v. The Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 504 (1982)). Here, we deal only with the statute on its
face. So considered, we hold that plaintiff has failed to establish the facial invalidity
of section 15-86 of the Property Tax Code.
¶ 44 III. CONCLUSION
¶ 45 For the foregoing reasons, the judgment of the appellate court is affirmed.
¶ 46 Affirmed.
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